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IN TilE SUPREMI. GH RT OF FLORIDA

ADRIAN FRlDMAN,

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CASE NO. SC13-DCA No. 5DL2 428

SAFECO INSERANCli COMPANY Ol'11.1 INOlS,

Respondent.

PETITIONER'S JURISDICTIONAL BRIEF

On Review from the District Court of Appeal, Fifth District, State of Florida

Case No. 51)l0-1852

Michael 5. Ry want, Fsq.Kerry C. NkGuinn, Jr.. I:sqR D1 A\T M l A R EZ. JG\ E5 R L550 & Gl 370\¯, P.A.109 N. Brush SL Ste. 500PO Box 3283Tampa, FL 33601Phone: (813)229-7007Appellate Counsel for Petitioner

TABLEOFCONTENTS

TABLE OF CONTENTS ...................................................................ii

TABLE OF CITATIONS ...................................................................iii

STATEMENT OF THE CASE AND FACTS ...........................................1

SUMMARY OF THE ARGUMENT ......................................................3

JURISDICTIONAL STATEMENT .......................................................4

ARGUMENT .................................................................................4

THIS COURT HAS JURISDICTION TO REVIEW THE DISTRICT'S COURT'SOPINION BECAUSE IT CONFLICTS WITH VEST, IMHOF, ANDBLANCHARD. THIS OPINION CONTRADICTS THESE DECISIONS BYPREVENTING THE DETERMINATION OF EXCESS DAMAGESNECESSARY TO ESTABLISH AN ELEMENT OF A STATUTORY CLAIMFOR INSURER BAD FAITH ..............................................................4

CONCLUSION ...............................................................................8

CERTIFICATE OF SERVICE ..............................................................9

CERTIFICATE OF COMPLIANCE .....................................................10

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TABLE OF CITATIONS

Cases

Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla. 1986) ................................7

Allstate Ins. Co. v. Jenkins, 32 So.3d 163 (Fla. 5* DCA 2010)........................1

Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289(Fla. 1991) .............................................................3,4, 5, 6, 7, 8

Conquest v. Auto-Owners Ins. Co., 773 So.2d 71(2"d DCA, 1998)......................6

Imhofv. Nationwide Mut. In. Co., 643 So.2d 617 (Fla. 1994)..........3, 4, 5, 6, 7, 8

Nationwide Mut. Ins. Co. v. Voigt, 971 So.2d 239 (2"d DCA 2008)...................2

Trafalgar at Greenacres, Ltd. v. Zurich American Insurance Co., 753 So.2d 1270(Fla. 2000).............................................................................7

Vest v. Travelers Insurance Company, 753 So.2d 1270 (Fla. 2000)...3, 4, 5, 6, 7, 8

Other Authority

Fla. Stat. §624.155 .....................................................................1, 2, 5

Fla. Stat. §627.727(10)......................................................................................2

Art. V, Sec. (3)(b)(3) Fla. Const..............................................................4

Rules

Fla. R. App. P. 9.030(a)(2)(A)(iv)..........................................................4

Fla. R. App. P. 9.210(a)(2) ..................................................................4

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STATEMENT OF THE CASE AND FACTS

Petitioner ADRIAN FRIDMAN ("FRIDMAN") asks this Court to review

the opinion of the Fifth District Court of Appeal issued on May 24, 2013. (A true

and correct copy of which has been attached hereto as APPENDIX "A"). This

opinion remands the case for entry of an Amended Final Judgment deleting any

reference to the jury verdict and directing jurisdiction not be reserved to amend the

complaint to add a count seeking relief under Florida Statutes Section 624.155.

The facts to the underlying litigation are as follows:

On January 8, 2007, FRIDMAN sustained serious injuries in an automobile

accident. The insurer for the underinsured tortfeasor tendered its policy limits of

$10,000 to FRIDMAN. On October 13, 2008, FRIDMAN asked SAFECO

INSURANCE COMPANY OF ILLINOIS ("SAFECO"), FRIDMAN's insurer, to

pay the $50,000 uninsured motorist ("UM") coverage policy limits. SAFECO

refused; FRIDMAN filed a Civil Remedy Notice pursuant to Florida Statutes,

Section 624.155. SAFECO neither responded to nor attempted to cure the Civil

Remedy Notice by settling the claim within the 60-day period. FRIDMAN then

filed a single-count complaint for UM coverage against SAFECO on April 29,

2008.1 Trial began on September 12, 2011.

'See Allstate Ins. Co. v. Jenkins, 32 So.3d 163 (Fla. 5th DCA 2010) (holdingthat the bad faith action is a separate and distinct cause of action, which did notaccrue until completion of the initial UM action).

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Shortly prior to trial, SAFECO tendered a check for the policy limits to

FRIDMAN and filed a Motion for Entry of Confession of Judgment. The trial

court denied the motion on September 6, 2011, fmding that SAFECO's actions

constituted an attempt to limit their potential liability in a future bad faith claim

and contrary to the "plain legislative intent of section 627.727(10)." At trial, the

jury awarded FRIDMAN $1 million in damages. The trial court entered the Final

Judgment for the policy limits2 but reserved jurisdiction to consider a request to

amend the Complaint to add a count for statutory bad faith against SAFECO.

SAFECO appealed the Final Judgment, arguing that the trial court

improperly denied its Motion for Entry of Confession of Judgment and that

tendering policy limits prior to trial rendered the trial moot. FRIDMAN argued that

her Civil Remedy Notice was a statutory condition precedent to filing a bad faith

action. As such, following the expiration of the Notice, there was a presumption of

bad faith, the upper limits of liability for which would be determined by the jury's

award in accordance with Florida Statutes, Section 627.727(10). SAFECO's

confession of judgment attempted to insulate itself from liability and the remedies

provided by Section 624.155.

In its opinion issued on May 24, 2013, the Fifth District Court of Appeal

held that the trial court erred in denying SAFECO's Motion for Entry of

2Nationwide Mutual Ins. Co. v. Voigt, 971 So.2d 239, 242 (2"d DCA 2008)(holding that the judgment amount can only be for the policy limits).

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Confession of Judgment and found the determination of damages in the underlying

action moot. The District Court held that the trial court should have entered the

Confession of Judgment and required FRIDMAN to file a another complaint

alleging the confessed judgment as a basis for bad faith.

The May 24, 2013 opinion has since become final. The District Court

denied FRIDMAN's Motion for Rehearing on July 8, 2013. FRIDMAN initiated

the instant proceeding invoking this Court's Discretionary Jurisdiction on August

6, 2013, and has filed instant Initial Brief on Jurisdiction with this Court on August

30, 2013.

SUMMARYOFTHEARGUMENT

FRIDMAN is respectfully requesting this Court exercise its discretionary

jurisdiction to review the Fifth District Court of Appeal's May 24, 2013 opinion

which is in direct and express conflict with this Court's decisions in Vest v.

Travelers Insurance Company, 753 So.2d 1270 (Fla. 2000), Imhof v. Nationwide

Mutual Insurance Co., 643 So.2d 617 (Fla. 1994), and Blanchard v. State Farm

Mutual Automobile Insurance Co., 575 So.2d 1289 (Fla. 1991). In these cases,

the court has established the two conditions precedent to filing a first-party bad

faith claim as (1) the establishment of liability and (2) a determination as to the

extent of Plaintiff's damages. Because the Fifth District's opinion effectively

removes the second of these prerequisites and establishes that the determination of

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damages is not a condition precedent to filing a statutory action for bad faith but an

element to be proven after a bad faith action is initiated, this Court should exercise

its discretionary jurisdiction to review the Fifth District Court of Appeal's May 24,

2013 opinion.

JURISDICTIONAL STATEMENT

The Florida Supreme Court has discretionary jurisdiction to review a

decision of a District Court of Appeal opinion that expressly and directly conflicts

with a decision of the Supreme Court or another District Court of Appeal on the

same point of law. Art. V, Sec. (3)(b)(3) Fla. Const.; Fla. R. App. P.

9.030(a)(2)(A)(iv).

ARGUMENT

THIS COURT HAS JURISDICTION TO REVIEW THE DISTRICT'S COURT'SOPINION BECAUSE IT CONFLICTS WITH VEST, IMHOF, ANDBLANCHARD. THIS OPINION CONTRADICTS THESE DECISIONS BYPREVENTING THE DETERMINATION OF EXCESS DAMAGESNECESSARY TO ESTABLISH AN ELEMENT OF A STATUTORY CLAIMFOR INSURER BAD FAITH.

FRIDMAN requests this Court exercise its discretionary jurisdiction to

consider whether the Fifth District's opmion expresses a misstatement of Florida

law, as the opinion directly and expressly conflicts with this Court's decisions in

Vest, Imhof, and Blanchard.

In Blanchard, this Court held: "Absent a determination of the existence of

liability on the part of the uninsured tortfeasor and the extent of the plaintiff's

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damages, a cause of action cannot exist for a bad faith failure to settle," effectively

making the resolution of the underlying suit and an actual determination of the

extent of Plaintiff's damages a condition precedent to the filing of a bad faith

claim. Blanchard, 575 So.2d at 1291. (emphasis added). (See also Imhof, wherein

this Court held that there is no cause of action for a first-party bad faith claim

absent a determination of the Insured's damages. Imhof 643 So.2d 618.) This

Court further held that, as the existence of liability and the extent of damages are

prerequisites to a bad faith claim, there was nothing improper about filing the

underlying claim prior to, and independent of, the bad faith claim.

In Vest, this Court "continue[s] to hold in accord with Blanchard that

bringing a cause of action in court for violation of section 624.155(1)(b)1 is

premature until there is a determination of liability and extent of damages owed on

the first-party insurance contract. This avoids the problem Blanchard dealt with,

which was the splitting of causes of action." Vest, 753 So.2d at 1276. This Court

has previously held that the issues regarding damages in the underlying claim and

the potential liability in a bad faith action should not be joined. Additionally, this

Court has also repeatedly held that the determination of the extant of damages is a

condition precedent to initiating a bad faith action. A failure to allege a

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determination of damages in excess of the policy limits results in no viable cause

of action.3

Contrary to this Court's decisions in Vest, Imhof, and Blanchard, the Fifth

District Court has concluded the opposite: despite the expiration of the statutorily

provided 60-day time period to cure pursuant to a civil remedy notice, once

SAFECO had tendered the policy limits and confessed judgment, the issue at hand

became moot. The District Court improperly concluded that the Motion for Entry

of Confession of Judgment, filed over three years after the expiration of the Civil

Relief Notice issued by FRIDMAN, established the existence of damages, and that

extent of these damages owed to Plaintiff were not a condition precedent to the bad

faith claim as the a count for bad faith was not included in the original Complaint.

The Civil Remedy Notice provided the language necessary to put SAFECO

on notice of the bad faith issue and perfect FRIDMAN's rights to pursue a bad

faith claim. SAFECO's failure to cure the Notice, or to even respond, created a

rebuttable presumption that SAFECO acted in bad faith. The 60-day time period

provided to cure the Notice effectively ensures that the insurer timely evaluates the

claim and attempts to avoid unnecessary bad faith litigation. The "obligation on

3Conquest v. Auto-Owners Ins. Co., 773 So.2d 71, 74 (2"d DCA, 1998)(holding that damages are a necessary element explicitly required by the languageof Section 624.155(1), and stating that it is precisely because the jury awarded theplaintiff less than her last demand for settlement that she cannot establish that shewas damaged).

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the part of an insurer requires the insurer to timely evaluate and pay benefits owed

on the insurance policy." Vest, 753 So.2d at 1275. (emphasis added). FRIDMAN

clearly issued this Notice to perfect FRIDMAN's rights to pursue a bad faith claim

as this Court has repeatedly held that to have done so would have premature and

should be dismissed as such. See Id. at 1276. Additionally, it is well-settled that

once the liability is established, the actual extent of the Insured's damages must be

determined. See Vest, 753 So.2d at 1273; see also Blanchard, 575 So.2d at 1291.

"The carrier effectually stands in the uninsured motorist's shoes and can raise and

assert any defense that the uninsured motorist could urge." Allstate Ins. Co. v.

Boynton, 486 So.2d 552, 557 (Fla. 1986).

Under the decisions rendered by this Court in Vest, Imhof, and Blanchard,

the two prerequisites to a first-party bad faith claim is the establishment of liability

and a determination as to the extent of injuries.

It is well settled that a statutory first-party bad faith action ispremature until two conditions have been satisfied: (1) the insurerraises no defense which would defeat coverage, or any such defensehas been adjudicated adversely to the insurer; and, (2) the actualextent of the insured's loss must have been determined. Trafalgar atGreenacres, Ltd. v. Zurich American Insurance Co., 753 So.2d 1270,1273 (Fla. 2000), (citing Vest, 753 So.2d at 1273 and Blanchard, 575So.2d at 1291).

The opinion of the Fifth District Court of Appeal issued on May 24, 2013,

effectively removes the second of these prerequisites and established that the

determination of damages is not a condition precedent to filing an action for bad

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faith but an element to be proven after a bad faith action is initiated. This Fifth

District opinion constitutes a direct and express conflict with the law established

by Vest, Imhof, and Blanchard for which this Court should exert its discretionary

jurisdiction to review.

CONCLUSION

WHEREFORE, for the reasons stated above, FRIDMAN respectfully

requests that this Court exercise its discretionary jurisdiction to review the opinion

of the Fifth District Court of Appeal issued on May 24, 2013, and further requests

that this Court direct the respective parties to submit Briefs on the Merits.

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CERTIFICATE OF SERVICE

I CERTIFY that a copy hereof has been furnished by e-Service this

day of August, 2013, to:

Anthony J. Russo, Esq. arusso@butlerpappas.comButler Pappas Weihmuller Katz Craig LLP777 S. Harbour Island Blvd., #500Tampa, FL 33602

Jeffrey M. Byrd, Esquire AttorneyByrd@aggressiveattorneys.com2620 E. Robinson StreetOrlando, FL 32803

Robert E. Vaughn, Jr. Robert.Vaughn@LibertyMutual.ComLaw Office of Glenn G. GomerEmployees of Liberty Mutual Ins. Co.600 North Westshore Blvd.Tampa, FL 33609

Maddge B. Penton, Esquire maddge.penton@libertymutual.com300 S Orange Ave, Ste 1275Orlando, FL 32801-5405

Mark A. Risi, Esq. mrisi@risilaw.comThe Law Office of Mark A. Risi2699 Lee Road, Suite 101Winter Park, Florida 32789

Respectfully submitted,

Michael S. Rywant, Esq.Florida Bar No.: 240254Kerry C. McGuinn, Jr., Esq.Florida Bar No.: 982644RYWANT, ALVAREZ, JONES,R USSO & GUYTON, P.A.

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109 N. Brush St., Ste. 500PO Box 3283Tampa, FL 33601Phone: (813) 229-7007Fax: (813) 223-6544msrywant@rywantalvarez.comkmcguinn@rywantalvarez.comAppellate Counsel for Petitioner

CERTIFICATE OF COMPLIANCE

I CERTIFY that this brief complies with the font requirements of rule9.210(a)(2) of the Florida Rules of Appellate Procedure.

Respectfully submitted,

Michfel S. Rywant, Esq.Florida Bar No.: 240254Kerry C. McGuinn, Jr., Esq.Florida Bar No.: 982644RYWANT, ALVAREZ, JONES,RUSSO & GUYTON, P.A.109 N. Brush St., Ste. 500PO Box 3283Tampa, FL 33601Phone: (813) 229-7007Fax: (813) 223-6544msrywant@rywantalvarez.comkmeguinn@rywantalvarez.comAppellate Counsel for Petitioner

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